High Court: Ruling Used to Expropriate Palestinian Land Not a Precedent

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Construction works in the new settlement of Amihai, where residents of the dismantled outpost of Amona have been moved, last September
Construction works in the new settlement of Amihai, where residents of the dismantled outpost of Amona have been moved, last SeptemberCredit: Olivier Fitoussi

The High Court of Justice clarified Wednesday that a ruling by Supreme Court Justice Salim Joubran, who has since retired, that seemingly paves a way to expropriate Palestinian land for the benefit of setters, contradicts previous rulings and has no binding legal validity.

Supreme Court President Esther Hayut dismissed a request by the left-wing Yesh Din organization to hold another hearing on Joubran’s 2017 ruling, which was made in relation to the Amona outpost, but made it clear that the legal proposals raised in it, which in the opinion of senior Justice Ministry officials could enable the legalization of outposts, are not legally usable.

In his ruling Joubran rejected the “absentee property” outline that was meant to allow the settlers to remain in the area adjacent to the original Givat Amona, but he recognized the authority of the army “to act to benefit the civilian interests of the Israeli residents of Judea and Samaria.” The legal innovation was that, in Joubran’s opinion, it is possible to recognize Israeli civilians as a “civilian population in the area” similar to the Palestinian population, which empowers the army to provide them with various services, including allowing the expropriation of Palestinian property for their benefit.

Credit: David Bachar

“The Israelis are part of the civilian population, and therefore the duty of the military commander is also interpreted as referring to them,” Joubran wrote in his ruling. “When it becomes clear that the military commander is obligated to act also for the welfare of the Israeli residents of the area, it appears that even according to the petitioners there is no arguing that the amended order [intended to help the settlers stay in the area, on land belonging to Palestinians who apparently left the West Bank in the last century] indeed fulfills this purpose.”

Following this ruling, which is considered a significant potential change to property law in the territories, the government began to consider new possibilities for regulating outposts by using Palestinian land for “public needs” that serve only settlers, such as roads to outposts. In November, Attorney General Avichai Mendelblit published a detailed opinion supporting the expropriation of private Palestinian land for the public needs of settlers in a way that allows for the construction of roads for outposts. Mendelblit had previously opposed this possibility, arguing that such lands could be used for public purposes only if they served Palestinians as well. After the Joubran ruling, Mendelblit changed his position. As a result, Yesh Din asked for another hearing on Joubran’s ruling.

“As stated by the petitioners [Yesh Din], it appears that the ruling contradicts previous rulings in this context, and it contains both a novelty and a difficulty,” wrote Hayut. She quoted Mendelblit’s opinion on the issue and wrote that Mendelbit was aware that, “The determinations [in it] deviate from the traditional legal position that has prevailed for many years, under which the expropriation of private land in the Judea and Samaria for public purpose that serve Israeli settlements is possible only when it also serves the Palestinian population.

Hayut thus dismissed the request to hold another hearing on Joubran’s ruling because it did not constitute binding law, but was “merely a passing reference.”

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